Appeal from the Circuit Court of Cook County No. 05 CR 999201 Honorable Nicholas Ford, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
JUSTICE KARNEZIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Harris concurred in the judgment and opinion.
Defendant Lazaro Gutierrez appeals from the circuit court's denial of his request for leave to file a successive post-conviction petition. Here, defendant argues: (1) he established cause and prejudice with respect to his claims of ineffective assistance of counsel, where counsel failed to inform him of the possible immigration consequences of his plea; (2) he established cause and prejudice with respect to his claim that his plea was not knowingly or voluntarily entered because the trial court failed to inform him of the potential immigration consequences as required by statute; and (3) the $50 State's Attorney fee was improperly imposed and should be vacated. For the following reasons, we affirm the judgment of the circuit court denying defendant leave to file his successive post-conviction petition, but vacate the $50 State's Attorney fee imposed.
Defendant was indicted with eight counts of first degree murder for his participation in the murder of Isidro Rodriguez on November 2, 2003. Prior to trial, defendant indicated that he wished to participate in a Rule 402 (Ill. S.Ct. R. 402 (eff. July 1, 1997)) conference. After the conference, defendant expressed a desire to enter a plea of guilty to one count of first degree murder. The trial court admonished defendant about the rights he would be relinquishing if he chose to plead guilty, including the right to a jury trial and the right to have his guilt proven beyond a reasonable doubt by the State. The court also explained defendant's rights to confront witnesses, testify, and present a defense. Defendant stated that he understood. The court then went on to explain the possible penalties associated with pleading guilty to first degree murder and sought assurance from defendant that he was acting of his own accord and had not been unduly influenced in deciding to plead guilty. Defendant responded, "I understand everything." The State then presented a factual basis for the plea.
"If called to testify, the State would present a family member of Isidro Rodriguez who would indicate that Mr. Rodriguez was born on September 1st of 1957 and was in good health prior to November 2nd, 2003, prior to 3:45 a.m.
The State would present the testimony of Doctor Aldo Fusaro; that he performed the examination or autopsy on the body of Mr. Isidro Rodriguez. To a reasonable degree of medical certainty, he would indicate that the cause of death was four gunshot wounds and that the manner of death was homicide.
Your honor, the State would further present the testimony of Assistant State's Attorney Victoria Ciszek; that she interviewed the defendant who she would identify in open court, Mr. Lazaro Gutierrez, on April the 4th of the year 2005; that at that time, she subsequently took a videotaped statement from this defendant.
In that videotaped statement, in summary and not verbatim, this defendant indicated that he together with a co-defendant by the name of Rosendo Ruiz had decided to perform a robbery. He indicated that Mr. Ruiz was the person who had the gun. That further they located this victim and they located him at the address of this incident where the murder occurred, which is 6050 South Sawyer in Chicago, Illinois, on November 2nd of 2003, at 3:45 in the a.m.
This defendant indicated that his role was to be a lookout, and he was to look out for the police and the neighbors. This defendant in that videotaped statement indicated that it was his partner, Rosendo Ruiz, who exited the car and who subsequently shot the victim.
The State would further present the testimony of the eyewitness to
this case. That eyewitness is a person by the name of Mr. Phillips.
would indicate that he was the individual who left the car;
that he would identify this defendant, Mr. Gutierrez, as the person he
saw leave the car; that he subsequently heard shots and he looked out
his window and he saw this defendant, Mr. Gutierrez, as the person who
reentered the car with the gun in his hand.
Finally, your Honor, the State would present the testimony of Detective O'Donovan with the Chicago Police Department. He would indicate that he was assigned to an unrelated case that occurred on November 6th of the year 2004 at 2154 South Ashland. He would identify the defendant as the offender in that case.
He would further indicate that a gun was recovered as a result of that incident; that gun was subsequently sent to the Illinois State Police; that on that gun, first of all, was this defendant's palm print; that further on that gun was the blood that subsequently the Illinois State Police performed a comparison and this defendant's DNA or profile matched the DNA from the profile that was found on the gun.
Finally, that that gun was tested and that gun was found to be the murder weapon in this case."
The court found a sufficient factual basis for the plea and entered a finding of guilty. The court sentenced defendant to 35 years' imprisonment in accordance with the terms of the agreement reached in the Rule 402 conference. The remaining counts of the indictment were dismissed. The court informed defendant that in order to appeal his guilty plea or sentence, he must first seek permission to vacate the judgment and withdraw the plea of guilty within 30 days.
Defendant did not appeal his conviction or file a motion to withdraw his guilty plea. On April 19, 2007, defendant filed a pro se post-conviction petition alleging that trial counsel failed to explain the case to him and lied to him so that he would accept the plea bargain. The court denied the petition as frivolous and patently without merit in a written order on June 19, 2007. The court found defendant's claims were belied by the record and noted that "petitioner's own words indicate that his plea was entered knowingly and with a full understanding of each consequence * * *and result therefrom." The court then issued an order assessing court costs and fees in the amount of $155 for filing a frivolous petition, which included a $50 State's Attorney fee pursuant to section 4-2002.1 of the Counties Code (55 ILCS 5/4-2002.1 (West 2006)).
Defendant filed a "Motion for Leave to File a Late Notice of Appeal," which was grated on October 23, 2007. Thereafter, the State Appellate Defender was granted leave to withdraw as counsel and this court affirmed the judgment of the circuit court on January 9, 2009. People v. Gutierrez, No. 1-07-2814 (2009) (unpublished order pursuant to Supreme Court Rule 23).
On June 30, 2009, defendant filed an "Application for Leave to File a
Successive Petition for Post Conviction Relief." In this application,
defendant stated that he is a Mexican citizen living in the United
States as a resident alien, and he included copies of his
identification cards. He also attached a copy of the police report
made following his arrest, which indicates that he was born in Mexico.
In his application, defendant alleged
his constitutional rights were violated because the
arresting officers failed to contact the Mexican Consulate as mandated
by the Vienna Convention and that trial counsel was ineffective for
failing to raise this issue. In addition, defendant alleged that
counsel was ineffective where he failed to notify defendant that his
guilty plea would subject him to deportation. Defendant explained that
had he been given this information, he would have gone to trial
because the evidence against him was not overwhelming. In addition,
defendant stated that the trial court violated his right to due
process because it failed to inform him of the possible deportation
consequences of his plea. Defendant alleged that this error precluded
him from entering his plea knowingly and intelligently.
Defendant explained that he did not raise these issues in a previous post-conviction petition because he "is uneducated, [and] he didn't know that these issues existed at the time of his first post-conviction." Furthermore, defendant stated that his trial and appellate attorney failed to raise these issues. The trial court denied defendant leave to file finding that defendant failed to establish cause and prejudice as required by section 122-1(f) of the Code of Criminal Procedure of 1963 (725 ILCS 5/122-1(f) (West 2006)). Specifically, the court found that "[t]he factual assertions relied on by petitioner in the instant petition were available to him when he filed his initial petition. Petitioner fails to identify any objective factor which impeded his efforts to raise these claims in his previous petition." The court added that defendant did not "identify any objective factor which impeded his efforts to raise these claims in his previous petition." It is from this finding that defendant now appeals.
The Post Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) allows a criminal defendant a procedure for determining whether he was convicted in substantial violation of his constitutional rights. People v. Edwards, 197 Ill. 2d 239, 243-44 (2001). To be entitled to relief under the Act, a defendant must establish a substantial violation of his constitutional rights in the proceedings that produced the conviction or sentence being challenged. People v. Jones, 211 Ill. 2d 140, 143-44 (2004).
The Act contemplates the filing of only one post-conviction petition. People v. Evans, 186 Ill. 2d 83, 89 (1999); 725 ILCS 5/122-1(f) (West 2006). Successive post-conviction petitions are governed by section 122-1(f) of the Act, which provides:
"Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure." 725 ILCS 5/122-1(f) (West 2006).
Leave to file successive post-conviction petitions may be granted when a defendant has established cause and prejudice, or when fundamental fairness so requires. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002); People v. Tidwell, 236 Ill. 2d 150, 161 (2010); 725 ILCS 5/122-1(f) (West 2006). Pursuant to the cause-and-prejudice test, the petitioner must show good cause for failing to raise the claimed errors in a prior proceeding and actual prejudice resulting from the claimed errors. Pitsonbarger, 205 Ill. 2d at 460; 725 ILCS 5/122-1(f) (West 2006) "Cause" is defined as "any objective factor, external to the defense, which impeded the petitioner's ability to raise a specific claim at the initial post-conviction proceeding." Pitsonbarger, 205 Ill. 2d at 462; 725 ILCS 5/122-1(f) (West 2006). "Prejudice" is defined as an error so infectious to the proceedings that the resulting conviction violates due process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS 5/122-1(f) (West 2006). A defendant must establish cause and prejudice as to each individual claim asserted in a successive post-conviction petition to escape dismissal under res judicata and waiver. Pitsonbarger, 205 Ill. 2d at 463; 725 ILCS 5/122-1(f) (West 2006). A trial court may determine whether a defendant has established cause and prejudice by reviewing the "contents of the petition submitted." Tidwell, 236 Ill. 2d at 162. We review the trial court's denial of a motion to file a successive post-conviction petition de novo. People v. LaPointe, 227 Ill. 2d 39, 43 (2007).
Defendant first claims that the trial court erred in denying his motion for leave to file a successive post-conviction petition where he established cause and prejudice in arguing that he was unaware of possible deportation consequences and his attorney was ineffective for failing to inform him of such consequences. Defendant further states that had counsel informed him of the possibility of deportation, he would have proceeded to trial given that the evidence against him was not overwhelming.
As "cause" for his failure to raise this claim in an earlier proceeding, defendant argues that he was unaware at the time of his guilty plea that he could possibly face deportation proceedings. Defendant contends neither defense counsel nor the trial court informed him that by pleading guilty he could possibly face deportation. Although defendant does not provide the date on which he became aware that he could possibly face deportation as a result of pleading guilty to first degree murder, taking defendant's representations as true, we find that defendant has established cause for failing to raise this issue in a previous post-conviction petition, especially where defendant's first petition was pro se and denied at the first stage.
Defendant claims that he has established prejudice by demonstrating that his counsel was ineffective for failing to notify him of the deportation consequences stemming from his guilty plea. Defendant claims that had he been aware of those consequences, he would have insisted on going to trial because the evidence against him was not overwhelming.
Although it had not been decided at the time defendant filed his application for leave to file a successive post-conviction petition, and had not been decided when the court issued its order denying defendant leave to file, defendant contends that the holding in Padilla v. Kentucky, 559 U.S. ____, 130 S. Ct. 1473 (2010), supports ...